On Sept. 20, 2003, the OSB House of Delegates approved
a resolution recommending adoption of new Oregon Rules
of Professional Conduct (ORPC) to replace the existing
Oregon Code of Professional Responsibility.1

The proposed ORPC is patterned after the ABA Model
Rules but retains many provisions of the Oregon Code
(including many that had been taken from the Model
Rules). In developing the proposal, the goal of the
Rules Committee2 was to retain the substance
of existing rules insofar as possible while conforming
them to the Model Rules format. In the few instances
where the proposed ORPC included a new obligation,
it was because the Rules Committee favored the Model
Rule approach or believed that the desire for uniformity
outweighed retaining existing Code language. As a result,
although the proposed ORPC has a different look, the
new rules do not deviate greatly in substance from
the DRs.

After approximately two hours of debate and discussion,
leading to several amendments, the House of Delegates
vote for approval was nearly unanimous, which suggests
that bar members embrace this change. In the words
of one member (a Region 5 delegate), with the adoption
of the new rules, 'Oregon lawyers will better
understand and more easily research their ethical obligation
to their clients. But even more importantly, [having
the new rules] will lead to Oregon clients receiving
even better service from their lawyers in the future.'

The House of Delegates made 10 amendments to the proposed
ORPC. Most are relatively minor and do not appear to
make any meaningful change in the conduct we have traditionally
expected of Oregon lawyers. Interestingly, however,
several of the changes both rejected the substance
of what had been the rule in Oregon and deviate from
the Model Rules language that had been proposed.

A brief discussion of the each of the
House of Delegates amendments follows; the text of
the proposed ORPC showing
the changes approved by the House of Delegates can
be found here.

Scope [14]: In a purely housekeeping amendment,
the House of Delegates deleted two sentences in this
paragraph that referred to the official Comment to
the Model Rules; the Comment was not part of the proposal
before the House of Delegates.

Rule 1.2(b): This is a new rule to Oregon without
a counterpart in the Code. It gives express permission
for a lawyer to limit the scope of a representation
if the limitation is reasonable under the circumstances.
It is intended to address the situation in which the
client has limited objectives or wishes to limit the
means used to accomplish the client’s objectives. The
House of Delegates deleted the requirement that the
client’s consent to a limited scope representation
be 'informed.' Under Rule 1.0(h), 'informed
consent' is the result of 'adequate information
and explanation about the material risks of and reasonably
available alternatives to the proposed course of conduct.' The
proponent of the amendment argued that the requirement
for informed consent was unnecessary in this context.

The result of this change may be trap for the unwary.
Commentators on the subject have suggested that one
of the biggest risks for lawyers in limited scope representations
is the potential malpractice liability if the client
and lawyer have different understandings about the
scope of the lawyer’s responsibility. Accordingly,
while there may be no need for an ethical requirement
of 'informed' consent, a prudent lawyer would
take care to ensure that the client understands the
risks and alternatives. Note, too, that Rule 1.4(b)
requires a lawyer to 'explain a matter to the
extent reasonably necessary to permit the client to
make informed decisions regarding the representation.' If
the scope of the lawyer’s responsibilities is a decision
regarding the representation, then Rule 1.4 requires
the very same explanation that supports 'informed
consent.'

Rule 1.5(d): This rule replaces DR 2-107 and
governs the sharing of fees between lawyers who are
not in the same firm. The Rules Committee recommended
the Model Rule approach that the client’s consent to
the fee sharing arrangement include consent to the
share each lawyer would receive, and that the consent
be confirmed in writing. The House of Delegates amended
the rule to delete the requirement for written confirmation
of the client’s consent on the ground that it was needlessly
burdensome. It also deleted the requirement that the
client be informed of and agree to the share each lawyer
would receive, on the premise that the client should
not have the right to control the division of the fee
between lawyers. As amended, the rule requires only
the client’s consent to the fee sharing arrangement
and that the total fee not be excessive. This is essentially
what is required by DR 2-107.

Rule 1.6(a): DR 4-101(C) allows a lawyer to
reveal confidential client information 'with the
consent of the client…but only after full disclosure…' Proposed
Rule 1.6(a) carried over that same obligation, but
substituted the requirement of 'informed consent' for 'consent…after
full disclosure.' A delegate suggested that an
explanation of risks and alternatives was unnecessary
when the client has requested the release of information.
The House of Delegates agreed and deleted the requirement
that the client’s consent be 'informed.'

Here, too, the change may lull lawyers into a false
sense of security. The discussion in favor of amendment
did not address situations where the request for client
information comes from someone other than the client
and where the disclosure might pose significant risk
to the client. Rule 1.4 (see above) requires that the
client be provided sufficient information to make informed
decisions about the representation. Moreover, a lawyer
who doesn’t explain the risks to the client may have
other liability if the client is disadvantaged by the
uninformed consent to disclosure.

Rule 1.8(f): Like its counterpart, DR 5-108(A),
this rule allows a lawyer to accept compensation from
someone other than the client if the client consents.
The House of Delegates added the words 'or the
attorney fees are determined by a tribunal.' The
proponent argued that the court’s award affords the
client as great or greater protection than informed
consent. This amendment is curious, because court-awarded
fees are not payment to the lawyer by someone other
than the client; they are intended to defray the client’s
cost of litigation.

Rule 1.8(h)(4): This was another housekeeping
amendment necessitated by the implementation of the
bar’s Client Assistance Office, which conducts the
initial screening and evaluation of all complaints
about lawyer conduct. The rule prohibits a lawyer from
entering into an agreement limiting the right of a
client to file or pursue a complaint with 'the
bar’s disciplinary authority.' To avoid the possibility
that someone could violate the spirit of the rule by
having the client agree not to file a complaint with
the Client Assistance Office, the House of Delegates
replaced the words 'the bar’s disciplinary authority' with 'the
Oregon State Bar.'

Rule 3.3(a)(4): This subsection retains the
requirement of DR 7-102(A)(3) that lawyers reveal 'that
which the lawyer is required by law to reveal.' Because
there is no counterpart in the Model Rules, it was
added to Rule 3.3, which is entitled Candor Toward
the Tribunal. The House of Delegates amended the proposal
to add the words 'to a tribunal' to add clarity
and guard against the rule being taken out of context.

Rule 5.3: This rule governs the responsibilities
of lawyers for nonlawyers who assist them in the rendition
of legal services. It has been part of the Model Rules
since 1983 but has no real counterpart in the Oregon
Code. As proposed, it applied to nonlawyers 'employed
or retained by or associated with' a lawyer. The
attorney general expressed concern that the rule swept
too broadly and could make a lawyer responsible for
conduct of nonlawyers over whom the lawyer has no supervisory
control even if the lawyer did not approve or encourage
the conduct and it was otherwise lawful. The House
of Delegates amended subsection (a) to make the rule
applicable to nonlawyers 'employed, retained,
supervised or directed by' a lawyer. Subsection
(c) of the rule holds a lawyer responsible for the
conduct of such persons if the conduct would be violation
for a lawyer and the lawyer ordered or ratified the
conduct or if failed to take reasonable remedial action
that could have avoided or mitigated the consequences.

Rule 5.5: This is a new rule in Oregon, setting
out guidelines for temporary practice in Oregon by
out-of-state lawyers. The House of Delegates approved
an amendment offered by the BOG to expand the scope
of the rule to allow temporary practice by lawyers
licensed in foreign (non-U.S.) jurisdictions.

Rule 8.4(a)(3): Rule 8.4 is essentially identical
to DR 1-102. Subsection (a)(3) was intended to retain
the existing requirement that lawyers not engage in
conduct 'involving dishonesty, fraud, deceit or
misrepresentation.' The House of Delegates approved
adding the words 'in relation to the lawyer’s
practice or private business affairs' at the suggestion
of a delegate that the rule needed a sharper focus
to ensure that lawyers would not be subject to discipline
for 'fishing and golf stories, bluffing at poker
and much of what passes daily as polite conversation.' Presumably,
this change was not intended to preclude the bar from
disciplining lawyers who submit false financial statements,
or make false statements in the voters’ pamphlet and
on drivers license applications.3

The House of Delegates voted down a handful of amendments.
One would have adopted the Model Rule requirement that
fee sharing between lawyers be proportional to the
services performed by each lawyer or based on joint
responsibility of the lawyers. Another would have deleted
two expressions of the special responsibilities of
prosecutors (to take reasonable care that accuseds
are informed of their rights and not attempting to
obtain waivers of important rights from unrepresented
accuseds). The House of Delegates also declined to
delete language that makes Rule 4.3 (communication
with unrepresented persons) applicable when the lawyer
is acting in the lawyer’s own interests, as is Rule
4.2 (communication with represented persons). Finally,
the House of Delegates rejected a motion to delete
all of Rule 5.3 (responsibilities regarding nonlawyer
assistants).

If the Oregon Supreme Court adopts the House of Delegates’s
recommendation, it is certainly to be expected that
we will go through some 'growing pains' as
we become familiar with the new ORPC However, we can
take comfort in the knowledge that we have not set
sail on uncharted seas, but can, where a particular
rule is truly new to Oregon, look for guidance in the
experiences of the many jurisdictions that have operated
under the Model Rules successfully for some 20 years.

1. At the time this was written, the proposal was
pending before the Oregon Supreme Court pursuant
to ORS 9.490(1), which provides in part : 'The
board of governors, with the approval of the house
of delegates
given at any regular or special meeting, shall formulate
rules of professional conduct, and when such rules
are adopted by the Supreme Court, shall have the
power to enforce the same.'

2. Officially, the Special Legal Ethics Committee
on Disciplinary Rules appointed by the BOG in August
2001.